Leary v. W. Jersey & S. R. Co.

• Decision Date: 07 November 1923
• Citation: 146 A. 359
• Parties: LEARY v. WEST JERSEY & S. R. CO. BOYAJIAN et al. v. SAME.
• Court: New Jersey Supreme Court

146 A. 359

LEARY

v. WEST JERSEY & S. R. CO.

BOYAJIAN et al.

v. SAME.

Supreme Court of New Jersey.

Nov. 7, 1923.

Separate actions by Dennis Leary, as administrator of the estate of Paul Leary, deceased, and by Munjeg K. Boyajian, in his own right and as natural guardian of George Boyajian, against the West Jersey & Seashore Railroad Company, tried together. Verdicts for plaintiffs. On defendant's rules to show cause. Rule in first case discharged on condition of remittitur, and in second case discharged.

Argued June term, 1923, before KALIS OH and KATZENBACH, JJ.

Bourgeois & Coulomb, of Atlantic City, for the rule.

Cole & Cole, of Atlantic City (C. L. Cole, of Atlantic City, of counsel), opposed.

PER CURIAM. The above cases arose out of the same accident and were tried together at the Atlantic circuit. In both cases verdicts were rendered for the plaintiffs. Rules to show cause were allowed in both cases at the instance of the defendant. Under these rules the cases are before us.

On October 30, 1921, a party of young people, six in number, were riding in a Ford automobile. The highway upon which the car was being operated crossed the tracks of the West Jersey & Seashore Railroad Company at a crossing known as the New Road Crossing in Pleasantville, in Atlantic county. At this crossing the automobile of the plaintiff was struck by an electric train of the defendant which had left Atlantic City at 11 p. m. for Camden. The accident happened about 11:15 p. m. Lester Eaton was driving the car. To his right sat Ethel Duncan. George Boyajian, Paul Leary, Betty Smallwood, and Edith Wagner occupied the rear of the automobile. There was an electric bell at the crossing. Beyond the crossing in the middle of New Road an electric street light was suspended. A good view of the tracks towards Atlantic City could be obtained from the side of the railroad upon which the automobile was as it was approaching the crossing. It was necessary for the automobile to ascend a grade to reach the track. Paul Leary was killed. One of the suits is by his administrator to recover damages for his death. George Boyajian, an infant, was injured. He has through his father sued to recover for his injuries. His father also sued for the losses which he had sustained through the accident. George Boyajian obtained a verdict of $1,000 His father obtained a verdict of $1,500. The administrator of Leary obtained a verdict of $7,500.

The defendant asks that these verdicts be set aside because they are contrary to the weight of the evidence. The evidence was conflicting. There was evidence that the crossing bell was ringing. There was evidence that it was not ringing. There was evidence that the whistle and bell upon the train were blown and rung as the train approached the crossing, as required by the statute. There was evidence that the whistle was not blown and the bell was not rung as required by the statute. If the jury had found in favor of the defendant, we would not have disturbed the verdicts. We are, however, of the opinion that the evidence is not so preponderating in favor...